Legal Library

No. 98-9347

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

____________________________________

GEORGIA STATE CONF. OF NAACP BRANCHES, et. al.

Plaintiffs-Appellants,

v.

CATHY COX, et al.,

Defendants-Appellees.
_______________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
_______________________________

REPLY BRIEF FOR APPELLANTS
_______________________________

GREGORY LUKE, Esq.
JOHN C. BONIFAZ, Esq.
BRENDA WRIGHT, Esq.
National Voting Rights Institute
294 Washington Street, Suite 713
Boston, Massachusetts 02108
(617) 368-9100

Dennis C. Hayes, Esq.
Willie Abrams, Esq.
Office of General Counsel, NAACP
4805 Mt. Hope Drive
Baltimore, Maryland 21215-3297
(410) 486-9180

John Clark, Esq.
General Counsel, Georgia NAACP
P.O. Box 752
Elberton, Georgia 30635
(706) 283-9732
FAX: (706) 283-0659

ARGUMENT

  1. FOR THE PURPOSE OF A MOTION TO DISMISS, ALL FACTUAL ALLEGATIONS AND WARRANTED LEGAL CONCLUSIONS IN THE PLAINTIFFS' COMPLAINT MUST BE TAKEN AS TRUE.

"[W]hen considering a motion to dismiss, the court must accept all allegations of fact as true and should only dismiss when it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proven in support of his claim." Solis-Ramirez v. United States Dep’t. of Justice, 758 F.2d 1426, 1429 (11th Cir. 1985) (citing Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 65-66 (1978)); accord Brooks v. Blue Cross Blue Shield of Florida, Inc., 116 F.3d 1364, 1369 (11th Cir. 1997); GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir. 1993). "The threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low." Campos v. I.N.S., 1998 U.S. Dist. LEXIS 20388, 12 Fla. Law W. Fed. D. 165 (S.D. Fla. Dec. 9, 1998) (citing Ancata v. Prison Health Serv., Inc., 769 F.2d 700, 703 (11th Cir. 1985) and Jackam v. Hosp. Corp. of Am. Mideast, 800 F.2d 1577, 1579 (11th Cir. 1983)).

Because plaintiffs' allegations clearly state a claim for relief, defendants attempt to circumvent the fundamental requirement of Fed. R. Civ. P. 12(b)(6) (that courts must assume all factual allegations to be true for the purpose of a motion to dismiss) by selecting certain well-pled factual allegations from the plaintiffs' complaint, labeling them "conclusions", and arguing that the court need not assume them to be true. Neither of the cases that defendants cite offers any support for their argument.[1]

Courts have identified only narrow exceptions to the established principle that all allegations must be taken as true for the purpose of a motion to dismiss, "such as where the facts alleged are internally inconsistent or where they run counter to facts of which the court can take judicial notice." Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489 (S.D. Fla. 1994). Under these exceptions, courts may reject two types of allegations: 1) unwarranted legal conclusions or 2) facts wholly unsupported or contradicted by other allegations in the pleadings.[2] None of plaintiffs’ allegations fall into either of these two narrow categories.

Defendants identify two "conclusions and agreements"[3] which, they claim, "may not be accepted as 'true' for the purposes of this appeal".[4] Brief of Appellees, 7-8, filed February 22, 1999 (hereinafter, "Def. Br."). The first is that "access to wealth has become a precondition of participation in electoral politics". Indeed, plaintiffs will prove at trial that "access to wealth has become a precondition of participation in electoral politics" by proffering as evidence, among other things, the personal testimony, historical data, and expert opinion referenced in their extensive allegations of fact. Plaintiffs have alleged substantial empirical data demonstrating the undeniable correlation between campaign spending and viability. R-1-4-7-12, 19-28 (¶¶ 36-63, 118, 124, 182). Plaintiffs have alleged numerous instances where plaintiff-candidates’ campaigns foundered for want of funds, despite organized and zealous popular support. R-1-4-16-26 (¶¶ 92-171). Plaintiffs have alleged numerous instances where plaintiff-candidates have been dissuaded from running for office because they did not have access to substantial wealth with which to challenge well-financed opponents. R-1-4-8, 24, 26, 29 (¶¶ 43, 150, 167-171, 184). Lastly, plaintiffs have alleged that, for want of money, they are unable to support a viable candidacy by someone who would represent their interests. R-1-4-14-29 (¶¶ 74, 109, 113, 119, 127, 132, 144, 161, 165, 166, 172-178, 183-187). These factual allegations provide ample foundation for the assertion that wealth is a precondition to meaningful electoral participation.

Indeed, plaintiffs need not prove the truth of this conclusion at this stage in the litigation; rather, they need only "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist." 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 2d § 1357 (1990) (hereinafter, "Wright & Miller"). Full factual presentation is the precise purpose of trial. "[A] complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988). The conclusion defendants contest is precisely the type of factual allegation that requires full exposition at trial and that must be deemed true for the purpose of a motion to dismiss.[5]

The second "conclusion" that defendants identify, without citation, is the "premise . . . that wealth causes success at the polls". Def. Br. at 8. Though plaintiffs do not make this precise claim anywhere in their complaint, it is indeed a reasonable inference that one may draw from plaintiffs’ factual allegations regarding the correlation between relative electoral spending and success. Nonetheless, plaintiffs need not support this purely factual claim with any more detailed allegations than they have already provided. R-1-4-7-12, 19-28 (¶¶ 36-63, 118, 124, 182). Furthermore, an absolute correlation between spending and winning is not necessary to the theory of the case. To prove that wealth has become an exclusionary precondition of participation in electoral politics, it would be enough to demonstrate at trial that one cannot viably compete in, much less win, elections without spending on roughly the same order of magnitude as one’s opponents. Alternatively, one could prove at trial that a candidate cannot viably compete for a seat in the Georgia Senate without amassing a certain threshold amount of campaign funds. Plaintiffs have alleged sufficient facts to support both of these theories. Id. Again, at this stage in the litigation, plaintiffs need not select or prove any specific theory, because "the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory". 5A Wright & Miller, § 1357. To the extent that the "premise" identified by defendants is somehow necessary to fulfill the plaintiffs’ burden in stating a claim, plaintiffs have alleged more than sufficient facts to support it.

Although neither of the allegations identified by defendants can be classified as a "legal conclusion", it is worth noting that courts are not required to reject such conclusions. Indeed, this court regularly assumes the correctness of legal conclusions, or mixed allegations of law and fact, for the purpose of deciding a motion to dismiss, when warranted by factual allegations in the complaint. See, e.g. Cole v. United States, 755 F.2d 873, 878 (11th Cir. 1985) ("In reviewing a motion to dismiss . . . the plaintiffs’ allegation that a duty to warn exists under state law is the sort of contention we must assume to be true"); Calhoun v. Alabama Alcoholic Beverage Control Board, 705 F.2d 422, 425 (11th Cir. 1983) (court assumed that reasonably prudent person would not have known facts relevant to tolling of statute). Such assumptions are necessary in light of "the policy of the federal rules to determine actions on their merits". See 5A Wright & Miller, § 1357 n. 31; Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1189 (5th Cir. 1986); Kauffman v. Moss, 420 F.2d 1270 (3d Cir.), cert. denied, 400 U.S. 846 (1970).

Notably, a case relied on by defendants confirms that courts must assume plaintiffs’ allegations to be true, even when such allegations mix law and fact. In Warth v. Seldin, 422 U.S. 490, 502 (1975), the Court noted "we must assume that [the town] zoning ordinance and the pattern of enforcement by respondent officials have had the purpose and effect of excluding persons of low and moderate income". The Court recognized that it must "also assume, for purposes here, that such . . . exclusionary practices, if proved in a proper case, would be adjudged violative of the constitutional . . . rights of the persons excluded". Id. In sum, for the purpose of a motion to dismiss, courts should assume the truth of factual or legal conclusions, unless those conclusions are wholly unsupported by other factual allegations or plainly at odds with established precedent.

Defendants seek a license to disregard, on a Rule 12(b)(6) motion, any and all factual allegations they disfavor. To allow them this license would destroy the basic architecture of pretrial procedure. Their attempt to circumvent the import of Rule 12(b)(6) is tantamount to an admission that plaintiffs have indeed stated a claim for relief. Immediately after arguing that plaintiffs' allegations are merely "conclusions", which need not be taken as true, defendants attempt to rebut those factual allegations. Def. Br. at 8-9. This proffer of evidence to allegedly "demonstrate[] the fallacy behind the theory" reveals that defendants’ dispute with plaintiffs is purely factual. Id. Before judgment on the merits, the parties must be allowed to present evidence, rather than be judged on the simple, concise allegations required by Fed. R. Civ. Proc. 8. "Whether plaintiff can prevail is a matter properly determined on the basis of proof and not merely on the pleadings." 5A Wright & Miller, § 1357 (citations omitted). Furthermore, "the court should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel or extreme, since it is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader’s suppositions." Id.

  1. UNDER TERRY V. ADAMS, PLAINTIFFS SUFFER AN INJURY IN FACT, FAIRLY TRACEABLE TO THE STATE OF GEORGIA, THAT WOULD BE REMEDIED BY ANY OF THE SUGGESTED FORMS OF RELIEF.

Defendants argue that plaintiffs have no standing because: 1) they have suffered no injury; 2) any injury they suffered is not fairly traceable to the State of Georgia; and 3) the relief requested would not redress their injuries. Def. Br. at 10-11. Each of these claims is mistaken. A careful reading of Terry v. Adams, 345 U.S. 461 (1953), and a review of plaintiffs’ allegations make defendants’ errors plain.

A. As controlling authority, Terry establishes the causal relationship between defendants' actions and plaintiffs' injuries.

In Terry, the Supreme Court held that private citizens could not deprive a discrete minority of their right to participate in "any 'part of the machinery for choosing officials'" despite the complete absence of state involvement in the private discriminatory conduct and despite the fact that the right of said minority to cast ballots in primary and general elections was in no way infringed. Terry, at 481 (Clark, J., concurring). This case -- whose holding was recently reaffirmed in Morse v. Republican Party of Virginia, 517 U.S. 186, 213 (1996) -- provides direct, controlling authority for the determination that the instant plaintiffs' injuries are fairly traceable to the State of Georgia and its sanction of the results of private election financing. Defendants and the court below both attempt to distinguish Terry by asserting that African-Americans were denied the right to cast ballots or nominate candidates in the Democratic primary or general elections. Def. Br. at 15; R-1-18-3. A review of that decision reveals that this conclusion is clearly erroneous.

As the district court decision in Terry made clear, the Jaybird Association did not certify the candidates it endorsed to state or party authorities. Terry v. Adams, 90 F. Supp. 595, 598 (S.D. Tex. 1950). Candidates endorsed by the Jaybirds had to file their own applications for a place on the ballot used in the Democratic primary. Id. Nor did the Jaybirds comply with or otherwise coordinate their activities according to Texas regulations governing political parties. Id. Furthermore, as the Jaybird's president noted at trial, absolutely nothing prevented African-Americans from nominating and voting for their preferred candidate in the Democratic primary and general election. 345 U.S. at 464-65.

Despite all these facts, eight justices agreed that the federal Constitution will not countenance a state election system in which such exclusionary private conduct has a controlling influence over the electoral process.[6] In Justice Black's words, it was "immaterial that the state does not control" the private conduct which "has become an integral part . . . of the elective process that determines who shall rule and govern". Terry, at 469. Contrary to the mischaracterization of defendants and the court below, there simply was no direct state involvement in the discriminatory conduct struck down in Terry. See also Adams v. Terry, 193 F.2d 600 (5th Cir. 1952) ("the Jaybird Democratic Association does not in any way or manner operate as a part or parcel of, or in liaison with, state political or elective machinery").

To support their misreading of Terry, defendants cite a phrase from the solo concurrence of Justice Frankfurter as if it were the holding of the case, which it plainly is not. Def. Br. at 16. Justice Frankfurter agreed with the majority that "formal State action, either by way of legislative recognition or official authorization, [was] wholly wanting" in Terry. 345 U.S. at 473. Assuming that county election officials voted in the Jaybird primary, Justice Frankfurter observed that "county election officials have participated in and condoned" the discriminatory conduct in question. 345 U.S. at 476.[7] None of the other Justices joined in this assumption, which had no factual basis in the record or in the opinions below. 345 U.S. at 485-86 (Minton, J. dissenting). Justice Frankfurter himself renounced as "false" the notion that 'state action' "implies some impressive machinery or deliberative conduct". 345 U.S. at 473. "The vital requirement", he wrote, "is state responsibility -- that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with state power, into any scheme by which . . . citizens are denied voting rights . . ." Id. (Frankfurter, J. concurring). Clearly, the Terry Court recognized that, even in the absence of direct state action, a state cannot ratify the results of private actions that systematically impair the fundamental voting rights of others.

Terry also stands for the proposition that courts must avoid formalism when addressing threats to the meaningful exercise of the franchise and must assess discriminatory practices in a realistic light.[8] Justice Black concentrated on the effect of the discriminatory conduct, concluding that a state violates the Constitution when it "permit[s] within its borders the use of any [electoral] device that produces" an unconstitutional result. 345 U.S. at 469. Justice Frankfurter noted that "long-accepted customs and the habits of a people may generate 'law' as surely as formal legislative declaration, and indeed, sometimes in the face of it". 345 U.S. at 475. In the case at bar, the court below ignored these admonitions in assessing the state sanctioned discrimination against nonwealthy voters and candidates in Georgia. The district court concluded that Terry did not apply to the instant case because, in Georgia, no one is denied the right to cast a ballot. R-1-18-4. Yet, the same rejoinder could have been made in Terry. As Justice Frankfurter stated, "[t]here is no restriction on filing by anyone else as a candidate in the Democratic primary, nor on voting by Negroes in that official primary". 345 U.S. at 471-72. The Court could have rejected the injury alleged by the African-American petitioners in Terry, leaving them as a 'remedy' to conduct their own private, pre-primary nomination or to persevere as independent candidates, but it did not. Instead, the Court recognized that, as a practical matter, the private Jaybird primary determined who shall govern in an unconstitutionally discriminatory fashion, despite the untrammeled right of African Americans to nominate and vote for candidates in state-run elections. Despite the complete absence of state participation, the Court struck down a private process that imposed unconstitutional restraints on citizens seeking to participate in self-government.

Notably, a description of the effects of the Jaybird primary struck down in Terry virtually mirrors the plaintiffs' allegations of the effects of the wealth primary in the case at bar:

"[G]enerally the persons endorsed in the Jaybird Primary are the only persons whose names appear on the ballot at the Democratic Primaries. And such persons are almost invariably elected or nominated at such Democratic Primaries and their names appear as Democratic Nominees on the official ballot in the General Election in November. The Democratic Nominees are almost invariably elected at such General Election."

Terry v. Adams, 90 F. Supp. 595, 598 (1950). By ratifying this process, Texas impaired the meaningful exercise of African-Americans' right to vote. Similarly, the instant plaintiffs have alleged that candidates with access to substantial wealth are almost invariably the only persons whose names appear on election ballots and who win in general elections. R-1-4-8, 14, 18-23, 26-29 (¶¶ 41-43, 74, 109, 113, 119, 127, 132, 144, 165-166, 172-173, 176-178, 182-85). Plaintiffs stand ready to prove these allegations at trial and to demonstrate that nonwealthy citizens' meaningful electoral opportunities and governmental representation are thereby denied. Assuming that these facts are true, as the court must, Terry instructs that the consequent impairment of nonwealthy citizens' right to vote is indeed fairly traceable to the State of Georgia.

B. Plaintiffs have adequately alleged substantial injury in fact that is likely to be redressed by a favorable decision.

As set forth fully in their initial appellate brief, plaintiffs have adequately alleged that the present system of private electoral financing substantially injures their individual rights to participate meaningfully in elections. In particular, they have recounted numerous attempts to run as or to support nonwealthy candidates for the Georgia Senate that were thwarted by the campaign war chests of well-financed opponents. R-1-4-16-27 (¶¶ 92-176). They have also cited controlling authority for the conclusion that such exclusion from meaningful electoral participation on account of wealth amounts to constitutional injury under the First and Fourteenth Amendments. Terry v. Adams, supra; Bullock v. Carter, 405 U.S. 134 (1972); Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966); Reynolds v. Sims, 377 U.S. 533 (1964); Davis v. Bandemer, 478 U.S. 109 (1986); Williams v. Rhodes, 393 U.S. 23 (1968); F.E.C. v. Akins, 524 U.S. 11 (1998); Dixon v. Maryland State Administrative Bd. of Election Laws, 878 F.2d 776 (4th Cir. 1989). Further, plaintiffs have offered numerous adequate suggestions of possible meaningful redress. At this stage in the litigation, plaintiffs need do no more than suggest relief that would be likely to address their injuries. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992). They need not establish the final form that such relief will take. Dopico v. Goldsmidt, 687 F.2d 644 (2d Cir. 1982).

Erroneously arguing that "here there is no question of ballot access", defendants repeat the error of the court below and echo its misunderstanding of plaintiffs’ allegations and controlling precedent. Def. Br. at 15; R-1-18-5. This case unquestionably involves questions of ballot access, in the same manner addressed by Terry v. Adams. Compare Libertarian Party of Florida v. State of Florida, 710 F.2d 790 (11th Cir.), cert. denied, 469 U.S. 831 (1983). By employing private financing in state elections, Georgia requires prospective candidates to amass substantial campaign war chests, effectively excluding nonwealthy citizens from placing candidates of their choice on the ballot and placing them at a disadvantage to their wealthy counterparts. In fact, the ballot access injury inflicted by the Georgia private financing regime is discriminatory in a manner that numerical ballot access laws are not. Where any group of citizens numerous enough to meet a state’s qualifying signature requirement may place a name on the ballot, regardless of their wealth, a small number of wealthy citizens can support a viable candidate for the Georgia Senate while a large group without disposable income almost invariably cannot. R-1-4-13-15, 17-21, 22-27 (¶¶ 68, 74, 88, 106-108, 112-113, 117-119, 123-127, 130-131, 136-176).

Notably, the Supreme Court has recognized that activities far more attenuated from the electoral process than fundraising might be prerequisites to the meaningful exercise of the franchise. For instance, the Court has not "foreclose[d] the possibility ‘that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either [the right to speak or the right to vote].’" Papasan v. Allain, 478 U.S. 265, 284 (1986) (quoting San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) (bracketed material in original; emphasis added)). If, therefore, something so indirectly related to elections as a basic "quantum of education" may serve as a prerequisite to the "meaningful exercise" of the right to vote, then there is clearly no per se causal or logical barrier to plaintiffs’ claim that some quantum of funding is also a prerequisite to the "meaningful exercise" of the franchise. Plaintiffs have alleged in detail how a financial inability to perform basic campaign speech excludes nonwealthy people from the "meaningful exercise" of their most basic political rights.

Defendants variously claim that the relief requested by plaintiffs is unlikely to provide redress and is facially unconstitutional. Def. Br. at 21-25. Neither argument has any merit. Defendants incorrectly claim that plaintiffs' "grievance can only be measured by success at the polls", thus rendering inadequate any remedy that fails to guarantee election. As discussed in the plaintiffs' appeal brief, this assertion is clearly false, as plaintiffs seek only an effective remedy to their present exclusion, a remedy that guarantees a meaningful opportunity to compete against well-financed candidates. Pl. Br. at 20-21, 23-25; R-1-4-31-32. Plaintiffs have suggested numerous possible forms such a remedy would take, which is more than is required at this stage of the litigation. American Nurses Assoc. v. State of Illinois, 783 F.2d 716 (7th Cir. 1986); Pl. Br. at 36-40.[9]

Generally citing Buckley v. Valeo, 424 U.S. 1 (1976) and Colorado Republican Federal Campaign Committee v. F.E.C., 518 U.S. 604 (1996), defendants make the wildly incorrect assertion that plaintiffs' requested relief will necessarily violate the First Amendment.[10] Def. Br. at 21-23. Defendants' assertion that promoting electoral participation by nonwealthy candidates somehow unconstitutionally restricts the First Amendment rights of other candidates has no support in the law. Def. Br. at 25. Courts have approved numerous devices designed to rein in the deleterious effects of money in politics, including voluntary spending caps, public financing, restrictions on corporate spending, and contribution limits. See, e.g., Gable v. Patton, 142 F.3d 940 (6th Cir. 1998), cert. denied, 1999 U.S. LEXIS 1547, 67 U.S.L.W. 3541 (1999); Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir. 1993); Rosenstiel v. Rodriguez, 101 F.3d 1544 (8th Cir. 1996); Republican National Committee v. F.E.C., 487 F. Supp. 280 (S.D.N.Y.), aff'd. mem., 445 U.S. 955 (1980); Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990). Indeed, Buckley itself upheld both public financing and contribution limits. 424 U.S. at 23-38, 85-109. Nothing prevents the Georgia legislature from enacting meaningful reform to redress plaintiffs' injuries within the framework of existing case law.

C. The cases cited by defendants are neither apposite nor instructive.

The cases concerning standing and injury cited by defendants do nothing to advance their arguments. In Warth v. Seldin, 422 U.S. 490 (1975), the Court found that specific facts and established legal principles defeated the standing of each group of plaintiffs. None of those facts and principles obtain in the instant lawsuit. For instance, the individual low income plaintiffs in Warth failed to allege that they personally had a "present interest" in purchasing town property, that they were "subject to the [challenged] ordinance’s strictures", or that they had "ever been denied a variance". Id. at 504. These plaintiffs’ claims of indirect harm also failed because they did not "demonstrate that, unless relief from assertedly illegal actions was forthcoming, their immediate and personal interests would be harmed". Id. at 507.[11] By contrast, the instant plaintiffs have demonstrated a past, present and ongoing interest in participation in Georgia politics that has been and will continue to be thwarted by the existing system of private election financing. R-1-4-12-29 (¶¶ 65-187). The instant plaintiffs have shown, through specific examples, that unless relief is forthcoming, their immediate and personal interests in self-government will continue to be harmed. Id.

In Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), the Court determined that the plaintiffs' injuries, the denial of free hospital services, did not confer standing upon them when no hospital was a defendant in the case. Unlike the Simon plaintiffs' "unadorned speculation" that the non-party hospitals would provide adequate charitable services under a different IRS ruling, the instant plaintiffs have alleged how meaningful campaign finance reform would allow nonwealthy citizens to participate in politics, alleviating their present exclusion. 426 U.S. at 44; Pl. Br. at 37-400. Further, where Simon involved an alleged injury to a procedural right (the proper application of the Administrative Procedure Act) and a question of charity, the instant case involves the denial of a fundamental right.

Finally, Valley Forge Christian College v. American United for the Separation of Church and State, Inc., 454 U.S. 464 (1982), involved a prolonged review of the doctrine of taxpayer standing in which the Court determined that the Establishment Clause did not confer a general right for citizens to petition the courts for redress of alleged violations where said citizens have not "alleged an injury of any kind, economic or otherwise, sufficient to confer standing". Id. at 486. By contrast, the instant plaintiffs have alleged in detail systemic injuries to their fundamental right to electoral fairness and governmental representation.

The cases defendants cite regarding the "causal relationship between the injury and the alleged illegality" are neither apposite nor instructive. Def. Br. at 13. In Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), the Supreme Court denied the standing of a private citizen "to contest the policies of [a] prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." The Court held that a mother of an illegitimate child did not have a "judicially cognizable interest in the prosecution or nonprosecution" of the father of her child under a Texas child support criminal statute because she made "an insufficient showing of a direct nexus between the vindication of her interest [obtaining child support] and the enforcement of the State's criminal laws [which only provide for incarceration of the convicted]". Id. Even if one applies this wholly inapposite analysis to the case at bar, appellants have demonstrated a direct nexus between their injury (exclusion from meaningful electoral participation) and the available relief (the establishment of electoral reforms that would ensure opportunity for meaningful participation).

In Cone Corp. v. Florida Dep't. of Transportation, 921 F.2d 1190, 1206 (11th Cir. 1991), this Court held that plaintiffs lacked standing because they had provided the district court no facts "from which the Court could predict whether [the State] would deny them equal protection of the laws in awarding future highway construction contracts". In contrast to the Cone plaintiffs' "vague" allegations of racial discrimination, the instant appellants offered a detailed and complete factual description of their exclusion from meaningful participation in state senate elections. Appellants have presented numerous examples of their thwarted efforts to mount viable campaigns from which this Court could predict continued violations of their fundamental voting rights. R-1-4-16-27 (¶¶ 92-176).

In Region 8 Forest Service Timber Purchasers Council v. Alcock, 993 F.2d 800 (11th Cir. 1993), this Court determined that purchasers of timber from the United States Forest Service had no standing to sue the Forest Service under various federal statutes relating to forest management and environmental policy. The facts of Region 8 bear no relationship whatsoever to the instant case, nor does the Court there address any "causal relationships", as defendants suggest. In E.F. Hutton & Co. v. Hadley, 901 F.2d 979, 987 (11th Cir. 1990), this Court determined that a bankruptcy trustee does not have standing to assert the claims of creditors of the bankrupt, emphasizing that this "holding is restricted to the specific facts in this case". In Jones v. Cavazos, 889 F.2d 1043 (11th Cir. 1989), this Court decided that the Department of Education's failure to afford a delinquent debtor a list of possible defenses or an evidentiary administrative hearing in relation to its collection action did not cause any injury to the debtor. In sum, the string of cases cited by defendants offer no guidance regarding the issues in this case.

  1. 'CONCERNS OF FEDERALISM' POSE NO BAR TO PLAINTIFFS’ CLAIMS.

Concerns of federalism do not prevent federal courts from striking down state electoral schemes that violate fundamental rights guaranteed by the United States Constitution. See, e.g., Bullock, supra; Terry, supra; Harper, supra; Lubin v. Panish, 415 U.S. 709 (1973); Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). The "right to vote in the States comes from the States; but the right of exemption from . . . prohibited discrimination comes from the United States." United States v. Cruikshank, 92 U.S. 542, 555-56 (1875).

Defendants have cited no authority for the proposition that plaintiffs' claims are barred by concerns of federalism. In fact, a number of cases they cite stand for the opposite conclusion, namely that the federal courts can and must review state election laws for violations of the federal Constitution, even though states retain certain powers to regulate their own elections. See e.g. Tashjian, supra, at 215-16; Sugarman v. Dougall, 413 U.S. 634 (1973). State action with respect to voter qualifications, for instance, is not "wholly immune from scrutiny under the Equal Protection Clause". Sugarman, 413 U.S. at 648.

Situations like the one at bar, where incumbents maintain an exclusionary electoral system that keeps them in office, present the precise circumstance where court intervention in state electoral regulation is most justified. See Baker v. Carr, 369 U.S. 194 (1962); O'Hair v. White, 675 F.2d 680 (5th Cir. 1982). When, for instance, a state electoral regime freezes the status quo by effectively barring candidates other than those proffered by the major parties, federal courts must assure that the state provides realistic means of ballot access. Jenness v. Fortson, 403 U.S. 431, 439 (1971); American Party of Texas v. White, 415 U.S. 767, 783 (1974). Plaintiffs have alleged that just such a status quo has been frozen in place by Georgia’s ratification of privately financed elections. Nonwealthy citizens have no meaningful ballot access in a system where substantial wealth is a precondition to participation.

Defendants' citation to Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1994), is unavailing, if not incomprehensible. In Kiryas Joel, the Supreme Court held that special treatment given by the New York legislature to a discrete religious community violated the Establishment Clause of the First Amendment. Nothing in Kiryas Joel has any relevance to the instant case, which involves no request for special treatment.[12]

Nor do the other cases cited by Defendants bear any relevance to the issues raised by Appellants' complaint. Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988), involved a criminal appeal in which this Court, quoting Gregg v. Georgia, 428 U.S. 153 (1976), deemed "[c]onsiderations of federalism" germane to its analysis an Eighth Amendment challenge to the death penalty. Defendants are unable to explain how that general statement has any applicability here.

Finally, defendants' quotation from Teper v. Miller, 82 F.3d 989 (11th Cir. 1996), reveals what is most problematic about their invocation of federalism in this case. Setting aside for the moment the fact that the passage quoted by defendants addressed judicial deference to a federal regulatory agency (and not deference to state legislatures), the quote by its own terms raises the precise reason why concerns of federalism do not render this case non-justiciable. While federal judges, "who have no constituency" should indeed "respect legitimate policy choices made by those who do", plaintiffs' allegations in this case raise troubling concerns about precisely who the constituency represented by the existing Georgia State Senate truly is. If, as plaintiffs allege, nonwealthy persons are systematically excluded from representation in Georgia government, they cannot expect redress from the very officials selected under the current unconstitutional scheme. Since Georgia has no mechanism for ballot initiatives, how would parties excluded from meaningful participation in state politics effect a fairer electoral system without the injunctive assistance of the federal judiciary? Just as generalized concerns about federalism could not prevent scrutiny of the exclusionary practices in Terry, they cannot shield the unconstitutional practices challenged here.

  1. THE REMEDIES SOUGHT BY PLAINTIFFS WOULD NOT INVOLVE THE COURT IN "SOCIAL ENGINEERING".

"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which . . . we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17 (1964).[13] These sentiments, which emphasize the gravity of plaintiffs' allegations, dispel defendants' notion that the plaintiffs seek "social engineering" by judicial fiat. In no way do plaintiffs perceive their exclusion from meaningful electoral participation as a "social ill". Def. Br. at 18. On the contrary, plaintiffs recognize that their exclusion from meaningful electoral participation defeats their basic constitutional right to have some voice in the management of their own affairs.

Defendants claim that courts should not "substitute their social and economic beliefs for the judgment of legislative bodies, [which] are elected to pass laws." Ferguson v. Skrupa, 372 U.S. 726, 730 (1962) (emphasis added). However, a challenge to the methods by which legislative bodies are elected cannot logically be a form of "social engineering". Plaintiffs do not seek particular economic or social legislation; rather they seek protection of their fundamental political rights, which are currently impaired by the private financing regime employed by the state of Georgia. As Wesberry v. Sanders instructs, such political rights are antecedent to any other liberty.

"[A]s a practical matter, there must be substantial regulation of elections if they are to be fair and honest." Storer v. Brown, 415 U.S. 724, 730 (1974). In the first instance, the declaratory and injunctive relief requested by plaintiffs would merely direct the Georgia legislature to devise some remedy to the unconstitutional electoral system it presently employs. As the Supreme Court has made clear, defendants cannot defeat the vindication of constitutional rights merely by asserting that courts are powerless to act:

We are told that the matter of apportioning representation in a state legislature is a complex and many-faceted one. . . . We are admonished not to restrict the power of the States to impose differing views as to political philosophy on their citizens. We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.

Reynolds v. Sims, 377 U.S. at 566.

* * * * * * * * *

This case involves the "real and appreciable impact on the exercise of the franchise" occasioned when a state conditions meaningful electoral participation on wealth. Bullock, 405 U.S. at 144; see also Harper, supra; Stoner v. Fortson, 359 F. Supp. 579 (N.D. Ga. 1972). The private financing of elections now places insurmountable obstacles in the path of many who wish, but cannot afford, to participate in self-government. Contrary to the district court's conclusions, a state "does not satisfy the Equal Protection Clause when it allows the poor to vote but effectively prevents them from voting for one of their own economic class." Lubin v. Panish, 415 U.S. at 721 (Douglas, J., concurring). In their detailed allegations, plaintiffs have set forth all the required elements of an Equal Protection claim against the state of Georgia under Fed. R. Civ. P. 8 and 12. Plaintiffs respectfully request that this Court reverse the decision below and allow them an opportunity to present the full merits of their case at trial.

CONCLUSION

The allegations of the plaintiffs, evaluated under the proper legal standards, establish their standing to bring suit under Article III of the Constitution of the United States and under the Constitution of the state of Georgia. The judgment of the court below dismissing the plaintiffs' claims should be reversed and the case remanded for further proceedings.

Respectfully submitted,

Gregory G. Luke, Esq.
Brenda Wright, Esq.
John C. Bonifaz, Esq.
National Voting Rights Institute
294 Washington St., Suite 713
Boston , MA 02108
(617) 368-9100

John Clark, Esq.
General Counsel, Georgia NAACP
P.O. Box 752
Elberton, Georgia 30635
(706) 283-9732

COUNSEL FOR APPELLANTS

Of Counsel:
Dennis C. Hayes, Esq.
Willie Abrams, Esq.
Office of General Counsel, NAACP
4805 Mt. Hope Drive
Baltimore, Maryland 21215-3297
(410) 486-9180

Dated this 11th day of March, 1999.

Footnotes

[1] In Hishon v. King & Spalding, 467 U.S. 69 (1984), the Court reversed a decision granting a motion to dismiss, taking all the plaintiffs allegations to be true and finding them sufficient to state a claim. Nowhere in the decision does the Court discuss, or even mention, exceptions to the normal requirements of Rule 12(b)(6). In Saudi Arabia v. Nelson, 507 U.S. 349, 353 (1993), the Court found that the relevant statute did not provide the court subject matter jurisdiction over the case, while noting that the truth of facts in dispute would be assumed in favor of the plaintiff.

[2] Courts have variously declined to assume the truth of 'legal conclusions', 'unsupported conclusions', 'unwarranted inferences', 'unwarranted deductions', 'footless conclusions of law', or 'sweeping legal conclusions cast in the form of factual allegations'. 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE: CIVIL 2D § 1357 (1990).

[3] The meaning of defendants' term 'agreements' in this context is not clear. Plaintiffs have discovered no cases that employ this term to elucidate the proper disposition of motions to dismiss.

[4] Oddly, defendants do not cite any unwarranted allegations in the plaintiffs' amended complaint. The first 'conclusion' to which they object is taken from plaintiffs' appellate brief before this court; the second is a general inference drawn by defendants themselves. Def. Br. at 7-8.

[5] The allegation that wealth is a prerequisite to political participation has gained substantial scholarly recognition. See, e.g., Fred Wertheimer and Susan Weiss Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 Colum. L. Rev. 1126, 1140-1142 (1994); Ronald Dworkin, The Curse of American Politics, NEW YORK REVIEW OF BOOKS, October 17, 1996, at 19-24; William Cassie and David Breaux, Expenditures and Election Results, in CAMPAIGN FINANCE IN STATE LEGISLATIVE ELECTIONS, (Joel A. Thompson and Gary F. Moncrief, eds. 1998); LARRY MAKINSON, CENTER FOR RESPONSIVE POLITICS, OPEN SECRETS: THE ENCYCLOPEDIA OF CONGRESSIONAL MONEY & POLITICS (5th ed. 1997); CHARLES LEWIS AND THE CENTER FOR PUBLIC INTEGRITY, THE BUYING OF CONGRESS: HOW SPECIAL INTERESTS HAVE STOLEN YOUR RIGHT TO LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS (1998); E. JOSHUA ROSENKRANZ, TWENTIETH CENTURY FUND/WORKING GROUP ON CAMPAIGN FINANCE LITIGATION, BUCKLEY STOPS HERE (1998); DARRELL WEST & BURDETT LOOMIS, THE SOUND OF MONEY (1999).

[6] Compare Baskin v. Brown, 174 F.2d 391, 394 (4th Cir. 1949) ("When the organization of the party and the primary which it conducts are so used in connection with the general election that the latter merely registers and gives effect to the discrimination which they have sanctioned, such discrimination must be enjoined to safeguard the election itself from giving effect to that which the Constitution forbids.") (emphasis added).

[7] If individual participation by state officials establishes the necessary causal connection required for state action, such participation clearly exists in Georgia where incumbent state officials are products of and participants in the electoral practices that plaintiffs challenge. R-1-4-4-8, 14, 22-25, 27-29 (¶¶ 14-17, 25, 36, 44, 79, 137-143, 148-157, 164, 173, 179, 186); see also GA. CODE ANN. §§ 21-5-2, 21-5-41(c), 21-5-42(c) (1996).

[8] This principle has been affirmed in subsequent voting rights cases. E.g. Anderson v. Celebrezze, 460 U.S. 780 (1983); Williams v. Rhodes, 393 U.S. 23 (1968). See also Smith v. Allwright, 321 U.S. 649, 661 (1944) ("Such a variation in the result from so slight a change in form influences us to consider anew the legal validity of the distinction which has resulted in barring Negroes from participating in the nominations of candidates . . .").

[9] Moreover, a number of states and municipalities have enacted comprehensive campaign finance reform, involving arrangements too diverse to canvass in this brief. See e.g. ARIZ. REV. STAT. tit. 16, ch. 6, § 16-940 et seq. (1990 & Supp.) ("Arizona Citizens Clean Elections Act"); MASS. GEN. LAWS. ch. 55A, § 11 (1990 & Supp.) ("Massachusetts Clean Elections Law"); ME. REV. STAT. ANN. tit. 21A, § 1002 et seq. and ME. REV. STAT. ANN. tit. 21A, ch. 14, § 1121 et seq. (1990 & Supp.) ("Maine Clean Election Act"); VT. STAT. ANN. tit. 17, ch. 59, § 2801 et seq. (1990 & Supp.)). These statutes provide examples of possible measures that the Georgia legislature might adopt should this court declare the unconstitutionality of the existing private financing regime. All of them contain some form of the remedial measures suggested by plaintiffs.

[10] "So significant have we found the interest in protecting the electoral process to be that we have approved the prohibition of political speech entirely in areas that would impede that process." McIntyre v. Ohio Elections Commission, 514 U.S. 334, 379 (1995) (citing Burson v. Freeman, 504 U.S. 191 (1992)).

[11] The taxpayer-plaintiffs in Warth lacked standing because they based their claim on a violation of the rights of third parties not before the court. Warth v. Seldin, 422 U.S. 490, 509 (1975). The various association-plaintiffs lacked standing because they failed to allege specific injury to their members or to otherwise lay out a claim under the Civil Rights Act of 1968. Id. at 512-17.

[12] Under the relief suggested by Appellants, any citizen who wishes to participate in politics would have an equal opportunity to qualify for public financing should he or she so desire.

[13] "[V]oting is of the most fundamental significance under our constitutional structure". Illinois Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979).